Motor Vehicle Accidents in Spring

Warren Berg 0:00

Good morning and welcome to the March edition of Ask the Lawyer across Alberta on Windspeaker Radio CFWE and CJWE . I'm your host , Warren Berg , and joining us once again this month are Shelagh McGregor and Cynthia Carels of Weir Bowen LLP in Edmonton .

Shelagh McGregor 0:15

Nice to see you again , Warren .

Cynthia Carels 0:16

Yeah , it's great to be back for another show .

Warren Berg 0:18

Weir Bowen is an Edmonton-based law firm . However , their lawyers have represented clients across Alberta , BC and the Northwest Territories and have been counsel in precedent setting cases all the way up to the Supreme Court of Canada .

Shelagh McGregor 0:31

Yes , all of us at Weir Bowen have benefited from the tremendous legacy of the firm's founding partners and the many amazing lawyers who have been attracted to the firm ever since .

Cynthia Carels 0:40

Yeah , it definitely bears repeating that , Warren . It definitely bears repeating , Warren , that Weir Bowen has a fantastic roster of lawyers who have repeatedly been voted by their peers in the broader legal community to the best lawyers in Canada list , year after year . Four of Weir Bowen's lawyers have now been ranked in the Canadian Legal Lexpert Directory as repeatedly or consistently recommended by law firm leaders and peers within our practice areas .

Shelagh McGregor 1:11

So to give you a bit of understanding of what that means , there are hundreds of lawyers in the city of Edmonton who do personal injury work , but only 10 Edmonton lawyers have been ranked by Lexpert's industry-based set of recommendation criteria in personal injury . And we're Bowen is a boutique firm with 21 lawyers , and four of our lawyers have been given this recognition in 2023 .

Warren Berg 1:32

So , to give our listeners some context , who or what is Lexpert , and how did so many we're Bowen lawyers end up with so many recommendations ?

Cynthia Carels 1:41

Yeah well , lexpert is actually well known within the legal community as a very respected source of news and information about the business of law . So they do take their rankings very , very seriously . But of course , you know , within the broader community it still might be a little bit of an unknown . So the only way that an individual lawyer can actually even be considered to get into their ranking system is to be nominated by other leading lawyers in that practice area . So once a lawyer is nominated , then Lexpert's editorial team actually does even further digging into each nominee before even determining whether or not that lawyer can be added to the annual survey .

Shelagh McGregor 2:16

But being simply nominated is not enough . Each lawyer also needs to be repeatedly recommended by a sufficient number of other lawyers simply to stay on the ballot .

Warren Berg 2:27

And how many lawyers get to vote .

Shelagh McGregor 2:29

So in 2023 , Lexpert confirmed over 15,000 Canadian lawyers participated in the voting in nearly 70 different practice areas . So for a relatively small Alberta-based firm like ours , we're pretty excited to be recognized by the legal community in such a large way .

Warren Berg 2:46

And I think it's safe to assume that the two of you are amongst the Weir Bowen lawyers to be recognized .

Cynthia Carels 2:50

Oh , that's very kind of you to ask , Warren . Yes , Sheila and I are both on the list , as are our highly esteemed colleagues Joe Miller and Dave DeVere , both of whom are also known as King's .

Cynthia Carels 3:03

Council

Shelagh McGregor 3:04

and in the past , you may have seen lawyers with the initials QC behind their names , which used to stand for Queen's Council . However , now that Canada's sovereign is King Charles , that honorific has been changed to King's Council .

Warren Berg 3:17

I like that word honorific . It sounds very fancy and also quite prestigious . Now how were lawyers selected to be recognized as King's Council ?

Cynthia Carels 3:24

It is a long tradition within the legal profession within Commonwealth nations to appoint lawyers as counsel to the sovereign if they've made particular contributions to the legal profession or to public life .

Shelagh McGregor 3:36

The provincial minister of justice technically awards these appointments , and there are some strict requirements that each nominee must meet , and those include you have to be at least 10 years at the bar , or being at the bar means being admitted as a lawyer . You have to have demonstrated competence and recognized expertise in your particular area of law . You have to have a history of honesty , integrity and professionalism . You have to have the respect of other lawyers . You have to have demonstrated mentorship of junior members of the profession and you have to have made contributions to the administration of justice .

Cynthia Carels 4:12

So , in addition to Dave and Joe , who are also both on the Lexpert list and we mentioned earlier , one of our founding partners , Elizabeth MacInnis , also holds that title of a KC and she has also been recognized as the 2023 Lawyer of the Year in personal injury litigation in Edmonton .

Warren Berg 4:30

So it appears safe to say that if our listeners today want to get in contact with Weir Bowen , there's no shortage of brain power to answer any of their legal questions . And speaking of legal questions , what are we going to be focusing on today ?

Cynthia Carels 4:43

Well , you know , since many of the kids across Alberta are now on spring break , there are all sorts of reasons why our phones light up at this time of year . However , motor vehicle accidents still continue to be one of the biggest reasons that potential clients will reach out to us . So we thought , now that we're into spring , we would dedicate today's show to MVA claims .

Warren Berg 5:02

Now , what makes spring such a popular time for motor vehicle accidents ?

Shelagh McGregor 5:06

There are so many reasons that spring can mark an increase in motor vehicle accidents . So , first of all , unpredictable weather . One day it's beautiful and sunny and everything's melting and the next day we've got a blizzard , freezing rain , yeah , freezing rain , who knows ? And then the freeze and thaw cycles . So the sidewalk in front of my house every morning is ice and by the end of the day it's water . Gigantic potholes Some of those were dodging oh , my goodness , the potholes in Edmonton these days . Dirty windshields that impair your views . The angle of the sun it's still quite low in the horizon when you're driving longer hours of daylight , so your people are out longer . There's more pedestrians out and about . Those are just a few things that contribute to the motor vehicle accidents this time of year .

Cynthia Carels 5:56

Yeah , and also don't forget the re-emergence of motorcycles and scooters back on the roadway , when we haven't been seeing them for the last six months , and unfortunately , some of the most tragic cases I've had over the years , especially in this shoulder season time of year , do involve motorcyclists . We'll just have a magical spring day , but the roads themselves are still pretty sketchy and other drivers are not yet on the lookout .

Warren Berg 6:22

So let's start to talk about motorcycle accidents specifically , then . Are they typically more challenging than other kinds of collisions ?

Shelagh McGregor 6:30

They're definitely challenging in their own way . So let's start with what we call liability issues , or the things that we look at to determine who's responsible for the collision . So insurers that we deal with often like to allege what we call contributory negligence . So if you're the driver of a motorcycle and somebody hits you , they say , well , you're partly to blame . Speed is often a factor . We see a lot of speeding with these motorcycle collisions . Motorcycles move very quickly and unpredictably , and that can take a lot of people by surprise , which contributes to collisions , and they're hard to see . They're much smaller on the road , and so they can sneak up in somebody's blind spot very easily .

Warren Berg 7:14

So what do you do if an insurance company wants to blame your client for causing or contributing to their own accident ?

Cynthia Carels 7:20

Well , truly , the sooner that we can get involved in these kinds of collisions , the better . The first thing we want to do is gather information from independent witnesses , you know , people who don't really have any skin in the game , but they just happen to see what happened and have more of an independent view of who was potentially to blame there . We also may want to attend at the scene of the accident , especially if there's still markings or other debris that remains visible on the roadway . We might even get independent inspections done of the vehicles before they're fixed or sent to scrap , and we could also potentially recruit what we call an accident reconstructionist to help us try to piece together what actually happened .

Warren Berg 8:00

So what is an accident ? Reconstructionist .

Shelagh McGregor 8:03

So accident reconstruction is a specialized field that involves a lot of physics and engineering expertise . That's not what we're experts at no the opposite .

Shelagh McGregor 8:14

See , they do math . We don't like doing math . There is a big difference . So if an accident is serious enough , the police may even use their own accident reconstructionist and close the roadway to do things like take measurements and photographs , document the final landing places of vehicles , and that helps engineers determine speed and where they were on the road and that sort of thing . They are also looking for physical evidence like liquid spills , fractured glass , skid marks and scratches on the road which can be caused at the time of impact , so it can help them place where the impact was , and physical damage to infrastructure like guardrails . So those are some of the things that the accident reconstructionists are looking for , and then they also will look at the actual condition of the roadway , you know , is it icy , is it clear , is it wet ? And they may possibly even conduct friction tests on the road surfaces before the conditions change , to see , you know , and that helps them determine how fast these cars or motorcycles were going at the time of the crash .

Cynthia Carels 9:25

Yeah , in the springtime even the gravel on the roadway makes a big difference .

Cynthia Carels 9:30

So they will conduct those tests and it is important to have that done in a timely fashion by the police . But we can also hire private accident reconstructionists as well , and in these tricky liability situations we frequently do need to get private experts involved . First of all , because not all accidents are actually attended by the police reconstructionist and we may need assistance with decoding what the evidence actually shows . So when we get a file that has all of the police reconstructionist information on it , it can look like a bunch of Greek letters on the page . We don't really know what it says without their help . We also need our experts to help us figure out what we don't know . So there may be some things that really jump off the page at us as making it very clear as to where liability rests . But you know , somebody with expertise in physics may say , yeah , but here's some other things that may make the picture a little bit more muddy and ultimately , if we go to trial , we're going to want to have an expert of our own who can give opinion evidence in court .

Motorcycle Accidents and Brain Injuries

Warren Berg 10:31

Is liability the only thing that makes motorcycle accidents so challenging ?

Shelagh McGregor 10:35

Unfortunately no . The magnitude of injuries is also something that adds a level of complexity . Adds a level of complexity . So you know motor vehicle accidents there's those passengers or drivers of motor vehicles or motorcycles are exceptionally vulnerable as compared to being in a car . There's no seat belts , no airbags , no vehicle frame to protect the occupants . Bikers we see often in these cases are catapulted into the air or they're dragged under the vehicles with little protection and depending on what they're wearing .

Cynthia Carels 11:10

And obviously it's not just the motorcycle drivers , but the motorcycle passengers are also extremely vulnerable . You know , it's all too common for a friend to just want to hop on the back without appropriate gear , leaving them highly exposed . And , honestly , some of the accident scenes and the images I don't think I'll ever be able to get out of my mind involve young women on the back of motorcycles , you know , wearing flip-flops or a sundress when they're on the back of their boyfriend's bike and the only thing that really protected their body was the helmet on their head . And of course , you know , when we're speaking about complex injuries arising from motor vehicle accidents , we obviously can't overlook heads , the concussions and the traumatic brain injuries as well .

Shelagh McGregor 11:52

Right . So helmets are a huge factor in motorcycle accidents and I'm sure every personal injury law firm in Alberta has a collection of damaged helmets in their file room .

Warren Berg 12:02

So let's talk about helmets for a moment . How effective are they ?

Cynthia Carels 12:05

Well , I certainly wouldn't want to be in a motorcycle accident without one but a lot of damage can still be done , even when bikers are wearing the best helmets that money can buy , so traumatic brain injuries still do happen when you're wearing a proper helmet . That includes things like cognitive impairments , memory issues , difficulties with concentration , you know , inability to learn and retain new information , to find the right words in a sentence when you're talking to somebody , and even things like sensitivity to light and sound or vestibular balance type related problems as well that arise from those head injuries .

Shelagh McGregor 12:46

So properly assessing and treating concussions , which we also call mild traumatic brain injuries , is a huge challenge . Concussions generally don't show up on traditional imaging , even on those very elusive MRIs that are so hard to get . So , although there's a lot more research being done , the brain is such a mysterious and complex organ . So , but that being said , we go to different experts who are researchers and lead the way in concussion assessment and treatment , and one of the newest technologies that's being used in these cases is the technology of SPECT scanning , and that's overseen by a neurologist , so a brain doctor , who can show and the SPECT scanning shows areas of decreased and increased blood flow in the brain and that can correlate with injuries such as concussions or even post-traumatic stress disorder , which is and that's a technology that we haven't had available to us until very recently .

Cynthia Carels 13:43

And one of the other experts we lean into with concussions cognitive issues are experts known as neuropsychologists . So the neuropsychologist will conduct testing in a clinic to see if there is actually evidence of a brain injury , and they're going to be testing for things like reaction time or memory . You know comparatives to average intelligence and for people with brain injuries their performance could be , you know , average in some areas like intelligence and significantly decreased in other areas like reaction time or memory , and so that can really help us to identify if someone is suffering from the recognized effects of a concussion .

Shelagh McGregor 14:22

Yeah , so that's a neuropsychologist . But we also will go to occupational therapists who are specially trained in neurocognitive assessment and therapy and they assess the real world ability to function as composed , as compared to neuropsychologists who look at it more in a clinic type setting . In past episodes we've talked about occupational therapists , so those are therapists who help people rehabilitate to be able to do their normal activities of daily living . For people with concussions who , say , have memory problems , their ability to function at work could be severely impacted . And certain occupational therapists are trained to rehabilitate people who have suffered these kinds of brain injuries by helping them function in the real world environments at work , in their home , in the community .

Warren Berg 15:14

I'm guessing that a lot of people who suffer from head injuries and motorbike crashes are knocked out entirely and may not even remember what happened . What do you do then ?

Cynthia Carels 15:23

Well , you're absolutely right . And may not even remember what happened . What do you do then ? Well , you're absolutely right , you know . Sometimes our client has no idea of what happened , and they may be experiencing post-traumatic amnesia . That may be you know about the events before the crash or after the crash . So we use these fancy words called retrograde and anterograde , and it is possible even that they might be in a coma for several days , weeks or even months after an accident . And sometimes the calls that we get aren't from the motorcyclist themselves . It's from a family member who's reaching out to us because their loved one can't .

Warren Berg 15:56

Now this is probably a very good time to talk about how our listeners can get in touch with you If they need to talk to a lawyer about an accident , whether it's on a motorcycle or some other type of injury . What is the best way to connect with you ?

Shelagh McGregor 16:08

The easiest way is to check out our website at weirbowencom so that's W-E-I-R-B-O-W-E-Ncom and on our Contact Us page there's a form you can fill in and our reception staff will make sure that your inquiry gets to the right person .

Warren Berg 16:25

Now what if the Internet isn't an option ?

Cynthia Carels 16:27

And we also frequently take what we call cold calls , and that's just where a person calls into our main reception line and our receptionist will get them in touch with somebody . So our main reception line is 780-424-2030 .

Warren Berg 16:42

Once again , that number 780-424-2030 . Once again , that number 780-424-2030 . This is Ask the Lawyer on Winspeaker Radio , cfwe and CJWE . I'm your host , warren Berg , and joining us once again today , sheila McGregor and Cynthia Carols of Weir Bowen LLP in Edmonton . That's W-E-I-R-B-O-W-E-N . 780-424-2030 online . We're bowencom . Today we are talking about motorcycle accidents on ask the lawyer and some of the challenges associated with those kinds of collisions , and we were talking about the frequency of motorcycle accidents resulting in traumatic brain injuries , even when bikers are wearing helmets .

Cynthia Carels 17:26

Yes , unfortunately a lot of damage can be done to a brain , even when it is properly secured in the best helmet that money can buy . But , as we were speaking about earlier , some degree of post-traumatic amnesia is also pretty common , as is post-traumatic stress disorder . And because motorcyclists tend to have a completely different crash experience , those who do remember things can frequently remember everything that happened in the crash , like the whole thing happened in slow motion . You know they can experience having you know their . It sounds cliche , but they can experience having their life flash before their eyes . It sounds cliche , but they can experience having their life flash before their eyes . It can result in terrible nightmares , panic attacks , flashbacks and intrusive thoughts that come up at any time of day or night .

Shelagh McGregor 18:13

And it's very easy for those mental injuries to be overlooked , especially when you have somebody who will probably have pretty obvious physical injuries

Navigating Legal and Medical Systems

Shelagh McGregor 18:27

. That will take priority with the physicians . And also many clients prefer not to talk about their experience with post-traumatic stress disorder and don't bring it up . They don't volunteer it . Avoidance is something that a lot of people use as a coping mechanism , and so a good personal injury lawyer is going to take the time to explore the possibility of post-traumatic stress disorder when we recognize that what these people have been through has been a very traumatic thing .

Warren Berg 18:52

Now why would a client avoid telling you about PTSD symptoms ?

Cynthia Carels 18:56

Well , like Sheila said , avoidance is a coping mechanism . But also they may not really even have insight into what they are experiencing . You know , sometimes even just talking about the accident itself can be very triggering and they may even feel some shame about what's happening . You know , many clients would far rather talk about having a broken leg or a broken arm than talking about broken brains or broken emotions that don't seem to be working properly or that they can't manage themselves . So you know , as a society generally speaking , we still have a very long way to go in validating these psychological injuries .

Warren Berg 19:34

Now , 10 , 15 , 20 years ago , these are the types of things that we probably never would have heard of . We are definitely hearing more and more about it , but it seems like the sort of thing that people have to live with for the rest of their lives is . Is there anything that can be done to treat PTSD ?

Shelagh McGregor 19:50

Thankfully , a lot of research is being done finally to help people who are suffering from PTSD . So , as I mentioned before , with the SPECT scanning , that's starting to identify people with PTSD and it's validating people's experiences , because it's a thing that you can see on imaging , and so it's becoming more validated , less hidden . And then there's different therapies that are used for people with PTSD cognitive behavior therapies and cognitive processing therapies . Those kinds of treatments focus on helping people change patterns of behaviors , thoughts , beliefs and feelings that lead to difficulties in functioning after a traumatic event like a collision like that . And then there's also prolonged exposure therapies that are used and those help people gradually approach their trauma in a safe and controlled and measured environment , and that equips them with the skills and tools to be present with their triggers .

Cynthia Carels 20:47

So we're actually seeing more and more of these psychological strategies and treatments being incorporated into what we call a multidisciplinary rehabilitation approach . So the idea behind these multidisciplinary approaches is honoring that mind-body connection and , as we're coming to understand , there's just a really huge role that our mental health plays in healing from physical injuries . So in those multidisciplinary settings we're going to see psychologists working hand-in-hand with occupational therapists , with physical therapists , with rehab med doctors , massage therapists , acupuncturists , even chiropractors and sometimes even psychiatrists .

Warren Berg 21:25

So this might be a good time to bring up the question of what is the difference between a psychologist and a psychiatrist ?

Cynthia Carels 21:31

Yeah , that's an excellent question . Psychologists do tend to use a lot of talk , therapy and teaching of mental health strategies to help our clients work through emotional trauma , but psychiatrists are actually medical doctors who specialize in medical health and medical mental health disorders medical health and medical mental health disorders so they have different tools in their arsenal , including prescription medications to help someone who's suffering from a post-traumatic stress disorder .

Shelagh McGregor 21:57

So in the context of a multidisciplinary approach , these two disciplines bring different but frequently complementary approaches to treating a client , and so often when we have a client who has PTSD , we see that they're getting treated by both a psychologist and a psychiatrist . So , for example , sleep it's a foundational building block to recovery . If you don't get enough sleep , it's really hard to get a full recovery , but it's often elusive for people suffering from post-traumatic stress disorder and other serious injuries traumatic stress disorder and other serious injuries . So using medication to calm anxiety and start to help regulate sleep , even if it's for only a few weeks , may be necessary before any other rehabilitation work can be done with a psychologist , for example .

Warren Berg 22:40

Now this sounds all very , very medical . What is a lawyer's role in all of this ?

Cynthia Carels 22:45

Well , in the weeks and months following a motor vehicle accident , focusing on the treatment and the rehabilitation part of the process is absolutely critical , and that medical care is obviously a top priority . However , there's also a lot to think about in terms of using the legal system to protect your rights and also to access the resources that you're going to need throughout your recovery . And , oh my goodness , does that ever mean a lot of paperwork . And if you look at Sheila and I , we might not be good at math , but , man , are we good at paper ?

Cynthia Carels 23:15

We love the paper , and so are insurance company adjusters as well . And so , you know , in those weeks and months following an accident , people are just inundated with paper and phone calls and emails from all sorts of people and it can be very difficult to figure out who should I be talking to and who should I not be talking to . You know you're obviously very concerned about the property damage that you sustained . You know who's going to pay to fix my bike or repair my bike or replace it completely . So there are property damage adjusters . Then there are adjusters who are dealing with getting you access to treatment .

Cynthia Carels 23:49

You know things like physiotherapy is not completely covered by Alberta Healthcare and typically , with a motorcycle accident , you're going to need a lot more physical therapy than you're going to be able to get through public health . And if you need access to a private psychologist , you know again , that's really expensive , and so it's very , very easy for potential clients to get lost in the shuffle unless they know what to ask for and from who . So in that initial time frame after an accident , we're really going to be focusing on making sure that you get your property damage dealt with and also that you're getting access to treatment through what we call Section B of your standard automobile policy . So this helps you to access treatment that's going to be paid for by your own insurance company . And I'm going to get a little bit technical here . Just so that your listeners have an idea of what this legislation entitles them to , I'll give you the really copious wordy part of it and then we'll break it down a little bit further .

Cynthia Carels 24:45

So in the legislation it says that people who are injured in a motor vehicle accident are entitled to all reasonable expenses incurred within two years from the date of the accident as a result of those injuries , for necessary medical , surgical , chiropractic , dental , hospital , psychological , physical therapy , occupational therapy , massage therapy , acupuncture , professional nursing and ambulance services and , in addition , for other services and supplies that are , in the opinion of the insured person's attending physician and in the opinion of the insurer's medical advisor , essential for the treatment or rehabilitation of the injured person .

Shelagh McGregor 25:22

So , yeah , figuring out what that means sometimes can be just as tricky as it sounds . We frequently get calls from potential clients who the first call we get is not because they want to sue somebody for the collision they were in . The first call that we get is from somebody who says I'm just trying to get treatment from my own insurance company and , for whatever reason , they're not getting it , or you know , they're mystified as to how to get it . They're not getting it , or you know they're mystified as to how to get it , and so people can get very frustrated with their own insurance companies regarding these Section B benefits . So we often have to look at the definition and to determine is this something you're entitled to ?

Shelagh McGregor 26:02

And although these benefits are technically supposed to be available for two years following the accident , it doesn't mean the insurer will just automatically agree to pay for everything you might want for those two full years . So , firstly , there's a $50,000 limit for this coverage , so and it's very rare for most people to even come close to using that amount for treatment . But in addition , there's also specific limits for certain treatment modalities , and so chiropractic , for example , there's a $1,000 limit . So that's all an insurance company will pay for . For your chiropractic treatment under your Section B policy , massage therapy they'll only pay $350 . That's the limit in the Section B policy .

Cynthia Carels 26:43

What a massage and a half .

Shelagh McGregor 26:45

Yeah , pretty much , depending on where you go . And then same with acupuncture the limit for acupuncture is $350 . So there's little details in the Section B policy that sometimes come up and stop people from getting the treatment that they're looking for and they're not necessarily aware of all those limitations . So that's why people come to us . So navigating through this legislation and understanding your entitlements can be a bit overwhelming , because you're dealing with an adjuster who knows the wording of these policies inside and out and you probably have never even read your Section B policy . And then on top of that , you're also actively dealing with pain and disability and inconvenience . And how many times are you going to physio this week and trying to get to work and work through your pain ? And then if somebody , if they have some cognitive issues , say they're dealing with a concussion or they're dealing with PTSD or have a traumatic brain injury , it's even more difficult to navigate .

Warren Berg 27:49

How does somebody know if they should be calling a lawyer ?

Cynthia Carels 27:51

Well , my advice , warren , is always to err on the side of calling . We get dozens of calls every week and we have a team of lawyers that can ask you the questions we need answered in order to determine if your situation actually warrants further investigation . And also , being called early allows us to assess if there's anything else we can do in those early stages to collect valuable evidence . You know things like accessing the black box from a car that's been impounded by police . Eventually , those cars are destroyed and we want to make sure that our experts have had the chance to get that important information if we think the responsibility for the collision is going to be in dispute in any way .

Warren Berg 28:28

What kind of information are you looking for in that first call ? The collision is going to be in dispute in any way ?

Shelagh McGregor 28:31

What kind of information are you looking for in that first call ? So some of the things we'll be asking people are when and where the accident happened and who was responsible for the accident , or is it disputed ? What injuries have you sustained ? Have you been receiving treatment and , if so , what have you been getting and where have you been getting that treatment ? And how have your injuries impacted your life ? Has it affected your ability to work or go to school ? If you're a student , your family or household duties ? You know some people . You know they have four kids and now they can't pick up their kids . That's a huge impact on them and recreational activities . I know my husband . If he wasn't able to golf , that would be very , very significant . And we'll also want to know if you've had to spend a bunch of your own money on out-of-pocket expenses like parking or care needs , or maybe you need a cast or whatever that hasn't been covered by Alberta Health .

Warren Berg 29:27

Seems like a lot of information . What if somebody doesn't have all of those answers ?

Cynthia Carels 29:31

No , it's truly okay if you don't have all the answers . And if you don't , we can certainly help you figure out what you might still need to pull together and also , more importantly , what kind of timelines you might be facing .

Warren Berg 29:42

Speaking of timelines , are there deadlines that our listeners need to know about ?

Shelagh McGregor 29:47

You know it . So in Alberta the Limitations Act governs the timelines that people are facing if they're looking at filing a lawsuit . So in Alberta it's two years from when you knew , or ought to have known , that somebody caused you injury . So with a motor vehicle accident it's generally two years after the accident . But you know , sometimes it's the discoverability Does . Discoverability comes into play , like maybe you don't know , for whatever reason . So that's generally not the case with motor vehicle accidents , but it's more the case , say , in medical malpractice or something like that , where people don't generally know when they've suffered an injury from somebody else quite yet .

Shelagh McGregor 30:29

But there are exceptions to that two years . So one exception is for minors . Their limitation doesn't start to run . That two-year period doesn't start to run until they turn 18 , until they become an adult . So their limitation is their 20th birthday . And then there's adults who lack the legal capacity to make decisions for themselves . And then there's adults who lack the legal capacity to make decisions for themselves and they actually don't have any limitation date . It's suspended as long as they're considered to be disabled and then there's ultimately a 10-year limitation period .

Shelagh McGregor 31:03

So if at the end of the day , even if you haven't discovered that somebody caused you it . If you haven't discovered that somebody caused you it after 10 years it's prevented , except for minors and people under a disability . So , as you can tell , it's a little complicated and it's very fact-specific , and so it's important to speak to a lawyer to get advice about the limitation date that is particular to your case , and sometimes we need to get even documents to take a look you know medical records , that sort of thing to take a look to determine what your limitation date is . So it's important to contact a lawyer as soon as you start to think I might need to bring a lawsuit .

Warren Berg 31:44

This is Ask the Lawyer on Winspeaker Radio CFWE and CJWE . Once again , I'm your host , warren Berg , and joining us today are Sheila McGregor and Cynthia Carrolls of Weir Bowen LLP in Edmonton . That's W-E-I-R-B-O-W-E-N . Their phone number is 780-424-2030 . You can also visit them online at weirbowencom . Visit them online at we'rebowencom .

Navigating Motor Vehicle Accidents and Claims

Warren Berg 32:09

Today we are talking about motor vehicle accidents and personal injury claims . So when an accident happens , do you have some tips for our listeners to keep in mind even before they give you a call ?

Cynthia Carels 32:22

Well , we're in the aftermath of an accident . As I think just about everybody in this room knows , it can be pretty chaotic . However , I'm not going to lie . I have actually received calls from the scene of an accident and I can tell you this is not necessary and , in fact , might be unsafe . So at the scene of an accident , the most important thing is to make sure that everyone is safe and , if not , then call 911 for help immediately . Once everyone's safety is assured , then it can be helpful at the scene to snap some photos of the vehicles . You know the positions on the roadway , any damage or debris scatter . But we also really want to make sure that you get the information from the other driver . You know the driver's license , insurance and registration information and , of course , if you've got the frame of mind to do so , the other thing we would really like you to do is get contact information from any independent witnesses who saw the accident , Because those independent witnesses can be so , so helpful , especially if the other driver disputes your version of what happened .

Warren Berg 33:21

What about involving the police ? Should you always call the police ?

Shelagh McGregor 33:25

In many cases it's not necessary to call the police to the scene of a collision . First of all , if everybody's safe , you don't need to call the police . You don't want to have to wait around for them to arrive and you don't want to block the roadway any longer than is necessary . But you should go and report the accident if there is any property damage or any injuries at all . To file a collision report , you give your written statement and then also the other driver's information . That other driver doesn't need to be with you when you make that report . And if they don't attend to give their report within a reasonable timeline , then the reporting agency will follow up with them . And also , if you have the contact information of any of those independent witnesses that Cynthia was talking about , you want to make sure you pass that information along to the police as well . The police sometimes question whether you need to file a report , but if there are even minor injuries , it does need to be reported .

Cynthia Carels 34:24

Yeah , and when you call our office we're going to be asking you to send us a copy of that report . Now in Edmonton we have these new collision reporting centres . Not all of the listeners we have across Alberta are going to have access to those collision reporting centres , but whatever it is that you get from that initial reporting station , we're going to want you to provide it to us because it will give us a lot of the preliminary information we're going to need to determine if we can help you . So , first of all , it's going to tell us when the accident happened so that we can assess limitations issues . It will tell us where the accident happened to make sure that you know the law that we understand applies to the jurisdiction where the accident happened . And it's also going to tell us who we might have to sue , because we are going to need to run some conflict checks in our system to make sure we're Bowen doesn't already represent somebody we might have to sue . And it should also tell us who the insurance company is .

Warren Berg 35:14

So this raises a very interesting question what if you don't know who hit you , and I'm thinking about situations like a hit and run accident where the other driver flees the scene ? What do you do then ?

Shelagh McGregor 35:25

So that does happen more often than it should , but fortunately that does happen more often than it should , but fortunately we can still help you in situations like that . So the alberta government , a number of years ago , recognized that these things happen and people shouldn't be left out in the cold with it . So , um , they uh enacted what's called the Motor Vehicle Accident Claims Act , and it created a fund that deals with these situations . So section seven of the Motor Vehicle Accident Claims Act specifically deals with claims involving unknown owners and operators of motor vehicles that were involved that caused an accident . So it's a fund that pays damages for up to $200,000 for motor vehicle accident injuries caused by unknown drivers .

Shelagh McGregor 36:13

But it's important to note , though , that these kinds of cases involve naming the administrator of the fund as what we call a nominal defendant , because we're actually claiming from a government-managed fund when we don't have an actual defendant to sue . Government-managed fund when we don't have an actual defendant to sue . So we're also required to put the administrator of the fund on notice in writing within 90 days after the collision , and failing to do so is not necessarily fatal to the claim , but we would have to get a written waiver of that timeline from the administrator , so there's no guarantee that they will agree . So if you've suffered injuries in a hit and run accident , do not wait to call us .

Warren Berg 36:52

That's very good to know . Let's back up for a second to what you said about this fund paying up to $200,000 for injuries . That leads me to two questions A where does this money come from ? And B $200,000 just doesn't seem like a lot of coverage for something like a really , really bad accident . What if that's not enough ?

Cynthia Carels 37:12

Two very excellent questions , warren . Let me tackle the first one and then Sheila can take the second one . So this Motor Vehicle Accident Claims Program was created by provincial legislation back in 1947 . And the goal then was to protect victims who are injured by uninsured or unknown drivers by ensuring that they're going to have an avenue for recovery for these injuries . And without this program , obviously , victims would have no avenue for recourse . But the money itself comes from all of us who register motor vehicles every year , so there's actually a fee that's attached to the registration by regulation and it's specifically earmarked for this fund . The last time I believe this regulation was updated was in about 2017 , and the fee was six bucks per vehicle .

Shelagh McGregor 37:55

So , and as for the $200,000 , that's actually been the limit since June 1st 1997 .

Warren Berg 38:01

So that's been a while 25 years , if my math is correct .

Shelagh McGregor 38:04

Yeah , it's , yes , we're coming up on 26 .

Shelagh McGregor 38:09

Look at us doing math on the fly . Yeah , we should be proud . So had that been adjusted for inflation , which it has not , that would amount to roughly $325,000 in today's dollars . And yes , warren , you're absolutely right that $200,000 as a limit does fall short , especially when you've had a bad accident or multiple people making claims for the same accident . It also doesn't cover any property damage at all , it's just limited to compensation for injuries . And on top of that , the $200,000 is the total amount available to respond to all injury claims associated with the accident . It's not a per person limit , so everybody what happens if that just isn't enough ?

Cynthia Carels 38:53

Yeah , we get into another whole complex area of insurance law regarding what's termed an inadequately insured motorist . So the first thing that we have to do is determine how many claims there are against that $200,000 pot . Then we have to add up the total value of all the claims and divide it on what we call a pro-rata split . So what's your sort of percentage of the entire value of all of the claims together ? Then you're going to get a share of that $200,000 in proportion to the value of your claim compared to the whole .

Cynthia Carels 39:22

So we're also going to be looking at your own insurance coverage as well to see if you have what's called an SEF endorsement on your policy and this is our time for a little public service announcement . It's a really good idea to take a look at your own insurance policy Probably a good idea to do it today in fact and see if you have that SEF 44 endorsement it's known as a family protection endorsement and if you are eligible to make a claim under that endorsement of your policy . We're also going to want to put your own insurer on notice as soon as possible . Then we can look to the coverages provided under that contract of insurance to access more money , assuming that your own policy provides for more coverage than what's available under the limits .

Shelagh McGregor 40:08

We could probably dedicate a whole other show to cases involving inadequately insured motorists , but it's really a really good idea to check with your insurance company or broker if that's what you use to make sure you fully understand what your policy will provide you and your family in the event that you're the victim of a hit and run or if you're injured by a driver with inadequate insurance coverage . So , according to Alberta's Automobile Insurance Rate Board , over 98% of Alberta's vehicles are insured with at least a million dollars of third-party liability coverage , or what we normally rely on to pay for claims . But there are still some people driving around with the minimum $200,000 coverage that's required by statute and I would say the standard coverage today is $2 million and that's what we recommend to people to protect themselves

Assessing Motor Vehicle Accident Claims

Shelagh McGregor 41:02

.

Warren Berg 41:02

So how do you and your team at Weir Bowen figure out what a claim is worth for somebody who's injured in a car accident ?

Cynthia Carels 41:08

We start thinking about that from the time of our very first phone call . That's when we're asking all of those nosy questions about the nature of your injuries , the treatment you've received , the impact that your injuries are having on your work and home duties , and then all of those expenses that you've had to incur . And we're going to take some time to gather all of that information together and then we'll look at case law . We're going to look at case law to see if we can find similar cases to yours in order to figure out what the courts have awarded for those what we call general damages for pain and suffering .

Warren Berg 41:40

Now you hear about pain and suffering on TV and the movies and you talk about the awards . How do you put a dollar value on that ?

Shelagh McGregor 41:48

There's a lot of misunderstanding about pain and suffering awards , especially since we hear so much about American cases in the news and there is a lot of commentary that's misleading about those cases too .

Shelagh McGregor 42:01

But here in Canada there was a trilogy of cases that our Supreme Court came out with in 1978 , that our Supreme Court came out with in 1978 , so a long time ago now that talked about the desire to cap pain and suffering awards . So we don't end up with the problems that the United States has had with their pain and suffering awards . So that trilogy of cases capped pain and suffering awards at $100,000 . And so that's been indexed to now . It's over $400,000 now , maybe $420,000 as a high watermark of pain and suffering in Canada . But in addition to our pain and suffering damages , we also have , we need to assess what we call pecuniary damages , or damages that you can calculate mathematically . Those include things like your loss of income , past and future cost of care , your out-of-pocket expenses and even your loss of housekeeping capacity can be calculated mathematically .

Warren Berg 43:05

Now it makes sense to me that you can mathematically calculate somebody's income loss . How can you calculate somebody's loss of housekeeping capacity if it's unpaid work ?

Cynthia Carels 43:29

sort that out . And we've talked in the past about the role of occupational therapists . That's typically who we're going to lean into to figure out this challenging assessment of unpaid labour . So they are going to help us to assess the scope and the value of that labour . So what this injured individual previously did around the house , that they either can't do anymore or perhaps they shouldn't be doing anymore because it's going to aggravate their injuries and may be better done by somebody else . And so even if that work is being done , say , by a family member or a friend , for no payment , it still does technically have a value . It has a market value .

Cynthia Carels 44:03

If you had to go out into the open marketplace and hire somebody to clean your driveway or make food for you or do your laundry , all of those things do have a market value . And so we're going to be looking to the occupational therapists , and possibly even to the assistance of an economist , to help us actually put a dollar value on the replacement value of those services . And then they are going to provide us with a cost of care schedule . So they'll say you know , maybe two times a month you're going to need to have housekeepers come in for four hours at $25 per hour , and you're going to need that until you know age 70 , at which point you probably would have needed it regardless of the accident . So that's how we put that dollar value on some of those unpaid services .

Warren Berg 44:47

Well , already today we've talked about a lot of experts , whether it be the occupational therapists or the reconstructionists . Getting all of these experts really sounds expensive . Does this mean you have to have a lot of money in order to be successful in a motor vehicle accident case ?

Shelagh McGregor 45:04

Thankfully no . If it's our opinion that the potential client has a meritorious case , then we'll generally run these kinds of files on a contingency fee agreement , and so that would outline that we get paid on the basis of a percentage of what we ultimately recover for that . Client Law societies have identified that the cost of legal fees on an hourly basis can really present a barrier to justice , particularly for people who have been injured as a consequence of somebody else's negligence . You know clients in these circumstances can't work , so they have limited income . They need money to pay for treatment that they need , so we don't want them to also worry about coming up with resources to pay for lawyers' fees , especially since these cases can take many years to wind their way through the system .

Warren Berg 45:53

Now , unfortunately , what if somebody dies because of a motor vehicle accident ?

Cynthia Carels 45:58

Well , you know , when we were talking about motorcycle accidents earlier , that is it . There's definitely a higher degree of fatalities in those . But you know , truly , some of the fundamentals of our assessment don't change . We still are going to need to figure out what limitation periods apply , we're still going to need to make sure that we're bringing the claim in the right jurisdiction and applying the appropriate law , and we're still going to need to run our system checks to make sure that we don't have a conflict of interest that would prevent us from bringing the claim . But if the injured person dies because of the accident , many elements of the claim itself do change substantially .

Warren Berg 46:33

Now , naturally I would assume that if somebody dies , wouldn't that mean that the value of the claim would go way up ?

Shelagh McGregor 46:39

You'd think so , but not necessarily In Alberta . Wrongful deaths claims are governed by the Fatal Accidents Act . This prescribes who is permitted to bring the claim , who can benefit from the claim and what the beneficiaries can claim for . So , as of May 1st 2013 , statutory damages awards , which basically the bereavement or the value of having lost a loved one , sort of like a general damages , pain and suffering thing , but in the context of fatal accident it allows for . So the Fatal Accidents Act allows for $82,000 to be paid to a surviving spouse or an adult interdependent partner , or 80 , plus $82,000 for the surviving parents to be divided equally if both parents are still alive , and then $49,000 for each surviving child of the deceased .

Cynthia Carels 47:37

There's never really a right number to put a price on somebody's sadness . There are jurisdictions where families have been required to kind of parade out what their grief is worth . In Alberta , we just decided our legislators decided to put these numbers on because there's not really a right number . We just needed to find a number that would be sustainable within our own province . This does sometimes mean , though , that there are people who haven't lost somebody they consider to be a loved one , who might potentially be entitled to the claim if they fit within that statutory definition .

Shelagh McGregor 48:07

Yeah , and so it .

Shelagh McGregor 48:09

It's a set amount for anybody , regardless of the strength of the relationship with the deceased . But what it does avoid is having to put people through evidence of how strong their relationship was with the deceased and how much of an impact it was . It takes away all of that kind of yucky evidence that people have to give . So so , on top of the bereavement damages in the Fatal Accidents Act there's also claims for loss of dependency on financial support and for household services . And household services can be very significant , even more so than financial , especially for children who have lost the uh benefit of having a parent take care of them , if they're , if they're young children , um . And then on top of that there's uh money available for funeral expenses , grief counseling for family members , and then , in the case of somebody who doesn't pass away immediately from the negligence , there's some pre-death care . So sometimes we get that in medical malpractice cases , if there's a delay in the diagnosis of cancer and somebody is going to die as a result of the delay . So pre-death care is also claimable .

Cynthia Carels 49:21

Yeah , so sadly , wrongful death claims do make up a substantial percentage of the files that we do run as personal injury lawyers , and they bring a whole myriad of additional quirks and challenges , and I think we'll probably dedicate an entire show to that in a few months from now .

Legal Education Series on Windspeaker Radio

Warren Berg 49:37

Well , we have covered a lot of ground today in the March edition of Ask the Lawyer with Sheila McGregor and Cynthia Carrolls of Weir Bowen LLP in Edmonton . Now , if you want more information , you can give we're Bowen a call at 780-424-2030 . You can visit their website , we'rebowencom . That's W-E-I-R-B-O-W-E-Ncom , and you can also find a link to Ask the Lawyer on our homepage , where the shows will be available to stream on demand . So if you didn't write down the but the SEF and you wanted to figure that out , you can go back . You can go visit the website and listen to this show and others . Thanks very much once again to Sheila and Cynthia .

Cynthia Carels 50:19

Thanks also to you , warren . Yeah , it's always great to work with you , Warren , you know this series , I hope , is important and beneficial to your listeners , as we're striving to bring a bit of legal education to those who tune in on Saturday mornings .

Warren Berg 50:31

And , as I've often mentioned , you know most of my legal education comes from what I see on TV and in the movies , so it's good to get a Canadian perspective , especially one that relates to a lot of our audience members . So we look forward to learning much more through this series , taking place on the last Saturday of every month on Windspeaker Radio , cfwe and CJWE .